Probate and Will Contest Litigation

The source of the information below is from Helpingyourcare.comdiscussing a new study published in the February 28, 2011 issue of the Archives of Internal Medicine which found that heavy smoking in midlife may increase the risks of getting Alzheimer Disease or Vascular Dementia later in life by more than 100%.

The authors of the study believe "this is the first study to investigate the long-term association between the amount of smoking in midlife and the risk of dementia [Alzheimer's Disease and Vascular Dementia] later in life in a large, multiethnic cohort.” Previous studies had measured only an association between smoking and short-term risk of dementia.

In the study, researchers analyzed data collected from a multi-ethnic group of 21,123 patients in the Kaiser Permanente Medical Care Program in San Francisco and Oakland, California, who participated in a survey given as part of routine medical care between 1978 and 1985. The survey collected a large amount of data on the subjects’ health habits, including the extent to which they smoked, as well as medical information about their height, weight, body mass index (BMI), blood pressure, glucose levels, incidence of stroke and cardiovascular problems, and other data. The study participants had a mean age of 58 years at the time of survey.

The researchers analyzed the data to determine whether extent of smoking in middle age correlated with dementia in later life. Results were adjusted to control for the potential effects of other factors, including age, sex, education, race, marital status, hypertension, hyperlipidemia, body mass index, diabetes, heart disease, stroke, and alcohol use.

The study results found that, compared to study subjects who did not smoke, those who smoked more than 2 packs a day at midlife had a greater than 100% increase in risk of both Alzheimer’s Disease and Vascular Dementia more than two decades later.

The association between smoking and dementia, including Vascular Dementia, remained significant even after controlling for the other factors. These results suggest that the brain may suffer long-term consequences as a result of heavy smoking in midlife.

Nina Wang’s former feng shui adviser and lover Tony Chan lost a bid for her $12 billion estate, with Hong Kong’s Court of Appeal dismissing his attempt to overturn an earlier ruling that the fortune should go to charity.

The judge described it as a throughouly dishonest case. Chan was arrested on charges of forgery as a result. He says he will appeal to Hong Kong’s highest court, adding a further chapter to the world’s biggest probate litigation. Chan claimed Wang left him her fortune after a 15-year intimate relationship that began when he was hired to help find her kidnapped husband Teddy, with whom she built the Chinachem Group into one of Hong Kong’s biggest closely held developers.

She had provided a 2002 will leaving her property to charity but then he presented a 2006 will to the court which purported to give him everything but the court found it to be a forged documents and charged him criminally. He has pledged to file an appeal to the highest court.

The 2002 will, which the appeal judges said was indisputably valid, devised the estate to the foundation that she established with her husband,Teddy in 1988. The foundation would award Chinese prizes of worldwide signficance, similar to that of the Nobel Prizes, according to the judgment.

The estate dispute described by the Probate Litigation Attorneys as the world's biggest probate dispute was similar to a will contest Nina Wang had with her father in law regarding her husband Teddy's billions and control of the company.

Wang had also been arrested during her will contest and probate dispute regarding forgery of her husband's estate for a will she claims he made just prior to the second time he was kidnapped in 1990. The police dropped the charges after the court of Final Appeal ruling.

Wang, died in 2007 at 69 with no children. She married Teddy in 1955 at the age of 18.

The couple turned a Shanghai paint and chemical business, started by Teddy’s father, into a property developer with extremely valuable properties.

The case is between Chinachem Charitable Foundation Limited and Chan Chun Chuen and the Secretary for Justice, CACV62/2010 in the Hong Kong High Court of Appeal.

TMZ.com reported tonight that David Beresford-Redman has petitioned the probate court to open the probate case and validate the will of his murdered daughter-in-law.

The probate petitioner his son Bruce Beresford-Redman is now charged with the murder of Monica -- is named in Monica's 2008 will as an executor of her estate also known as the personal representative of her probate estate.

Monica's sisters have said they will challenge the validity of the will.

Under the will, David and his wife Juanita would inherit Monica's interest in a house she owns. The remaining property goes to Bruce.

As previously reported by Probate Attorney Blog.com in Florida if a person is merely proved to have more likely than not intentionally and unlawfully brought about the death of another they are unable to inherit anything from the estate. However in California where the will contest is going to occur and the probate case was filed in the LA Superior Court Probate Division the standard is higher and requires a felony so there likely needs to be a conviction although it appears that the sisters are going to seek to contest the provisions going to the father as well or his being personal representative. As far as personal representative the position may be to argue whether he could be fair and impartial as the son is the primary beneficiary currently but that will be challenged but the provisions to him should pass to him unless either he was involved with the murder in some way which seems highly unlikely or there is another legal claim. She had mental capacity though and undue influence is not often made for a case of a woman of her age. While the evidence has appeared to show that the son likely did murder her and he will not receive his share if that is proven to be the case while the writer of this blog is a Florida Probate Attorney and not licensed to practice law in California most slayer statutes do not bar relatives of the slayer who are named in the document and had nothing to do with the wrongful act from inheriting so it will be interesting to see what the legal arguments are in this case. The father had told the children that their mom died in a car crash when they got them as temporary guardians instead of telling them the truth than barred them from going to the funeral and there is likely to also be continuing guardianship litigation regarding who gets the children and what is in their best interests given how their mom passed.

The Broward County Probate and Trust Section of the Broward Bar Association and organized by the Florida Probate Attorney who writes this Probate Attorney Blog, David Luber as chair. are pleased to be hosting a seminar titled Probate Law a view from the bench. The bar section and Probate Attorney David Luber thank Broward Probate Judge Green, Probate Judge Grossman and Probate Judge Speiser for speaking to the section on the evening of May 4 at the Bar Association. For more info the Broward Bar website click here.

Melvin Simon was around the top 300 richest people in the Forbes 400 (# 278 when he was 79 years old). He died around 82 years of age. His estate was worth around $1.3 billion dollars.

Dana Hunsinger of the Indystar.com provided an update of the probate and trust litigation. The judge dismissed part of the case in which his daughter Deborah Simon stated fraud as the claim but was not specific enough in nature. It is allowed it to be refiled. The Probate court Judge failed to dismiss the estate dispute claims against her stepmom Bren Simon which argued undue influence and lack of mental capacity.

While I am not familar with Indiana Probate case law or statutes in Florida can't really merely rely on presumptions to prove an undue influence case against a spouse however she appears to be seeking to prove it directly and using evidence of lack of capacity or diminished capacity.

She indicates that not only were the documents changed just months before he died and was a significant change from prior wills which then gave her stepmom hundreds of millions more while vastly reducing what was going to charity or to herself and her siblings she also indicated that her father Billionaire Mel Simon was suffering from significant neurological problems at the time which impaired his memory, understanding and communication. It is undisputed that he had difficulty even signing the documents although his spouse Bren says that is from Parkinsons and that he signed freely, voluntarily and knowingly.

As I tell clients who inquire about Florida Probate Litigation Information a person can leave there property to anybody they want for any reason they want. However, that is subject to them having mental capacity and there not being evidence of undue influence that they were coerced into doing so and the result was the other persons influence and not their own. The article does not provide many details of undue influence although based on the time line and the capacity issue along with the large change in disposition it seems questionable that he even formed an intent to change the document and undue influence is often combined with diminished capacity which was clearly present here so this will be an interest case to see where it goes. When discussing a potential challenge to contest a will or trust and dispute the intent I do like to see some of the facts that Deborah appears to have here he had a previous plan which she was provided significantly more for, then there is the alegation of significant neuroglogical problems and he was not even able to sign and he was somewhat elderly as well as died just months after signing the document so the timeline looks good. The facts will need to be established to prove the case though was it his intent to provide more for his spouse and did he know what he was doing and act voluntarily will ultimately decide the issue. However with this much money involved and a reasonably good timeline but with it being the spouse and difficult to win unless they can do so on the capacity issue or have direct facts proving undue influence they should settle it would seem in both sides best interests. While sometimes principle is important and it may be worth fighting until the end in a case like this both sides can be sufficiently provided for in a settlement and factoring in the time and saved expense in court costs and attorneys fees it may be a smart move. Anna Nicole Smith estate suing the estate of her deceased billionaire husband and opposed by the estate of his son shows how extended cases of this size can become if each side has a fight to the death mentality. All the initial participants literally did in that case and it is still going on after 15+ years and numerous appearances in multiple different types of courts. She has been awarded $474.5 million around around 89 million and most recently nothing but her side has said they may seek to be heard a second time by the US Supreme Court on a different issue.

On a final note back to the Melvin Simon case it is best that his daughter brings the challenge regarding lack of capacity or diminished capacity and potential undue influence since frequently talking with and seeing her father she could likely present any facts which existed to the court more easily than a charity who may not have had much contact with him. However if a representative of the charity were to know of his condition at the time of execution and chose to join the suit they would be an interested party given the millions of dollars less they would be receiving under the revised will and trust.

Her Estate lost the latest round in the probate and trust fight but the estate dispute may continue as her probate litigation attorneys have said they may appeal back to the US Supreme Court on a different issue than was heard in 2006.

A federal Judge has denied the estate of Anna Nicole Smith $300 she claimed her ex husband who died at the age of 90 an oil billionaire had promised her. J. Howard Marshall who had a $1.6 billion dollar estate and gave her millions in gifts during his lifetime has been contested for 15 years. The trust and estate litigation has been disputed by each side in probate court, bankruptcy court, the Supreme Court and numerous venues with a series of conflicting results with a bankruptcy court awarding as much as $474.5 million another court cutting it back to $89.5 million.

The federal judge essentially determined they had been wasting their time the past decade. He cited that a 2001 Texas jury verdict said that the money was not intended as a gift and there was no undue influence or fraud. During that court fight as both parties were present and had the opportunity to present their case then the jury spoke the district court should have held to the findings of the Texas Probate Court and that should have precluded other courts (such as the bankruptcy speaking to the factual findings or legal conclusions). Although the bankruptcy court had made their ruling first in 2000 and Anna Nicole's attorney sought to argue federal court should therefore control the courts found the case was initially in probate court and their was a full trial at the probate court level and the bankruptcy decision did not have jurisdiction but was merely an advisory opinion.

In 2002 a district court cut back the 2000 bankruptcy verdict in favor of Anna Nicole but this federal court ruled that given the 2001 probate court case the 2002 judge should have dismissed the case instead of merely cutting the amount to $89.5 million.

His family said that lies about E Pierce Marshall have finally been put to rest.

In 2006 the US Supreme Court had ordered a federal appeals court to reconsider its ruling against Smith.

It is an important decision from a jurisdictional issue. Had the bankruptcy court been able to prevail and take precedence over the probate court it would have provided a 2nd chance to rush off to another venue when it appeared a case was going poorly and create jurisdiction shopping. Here there was already a probate case going but then she went to a different jurisdiction and was able to get them to take the case on different grounds of a supposed bankruptcy but essentially just a tactic to retry the case in a different context and court. This decision sends the message to determine facts regarding the probate and trust issues in the probate court and to then go with the factual finds of that court and not drag it through to numerous other types of courts to get another shot on the same factual determinations.

Anna Nicole was 26 when she married the 89 year old J. Howard Marshall who was 89 after meeting her a couple years earlier when she was a stripper. They were married for only 14 months.

One of her attorneys Howard Stern who was also a past boyfriend was to be paid a contingency fee and will now also receive nothing absent another reversal. She had been his only client and he had made no money for years as mentioned during her estate. At this point the son of J. Howard Marshall who was initially litigating against Anna Nicole died and his estate continued to fight then she did as well and even her son died so the only heir was her daughter who is a minor but she will receive nothing based on the decision. The son's family hopes this finally concludes 15 years of disputes regarding the estate. It has been an interesting case to follow for jurisdictional and other reasons. An article discussing his not receiving anything can be found here.

After years of disputes and litigation regarding the terms his trusts and will contests a settlement to distribute the trust and estate assets was reached.

His charitable trust will receive 50% of the assets and help needy kids in South Carolina and Georgia.

Tomi Rae Hynie Brown was determined to be his wife which had itself been litigated since it was argued she had not been properly divorced from her prior husband so it was argued that the marriage with James Brown should have been invalid. She however received 25% share along with her son James Brown II who was a minor and there had been questions of whether that had even truly been James Brown son. Neither one had been provided for in prior wills and trusts which they contested and were disputing in the litigation. They had rights as pretermitted heirs since the marriage was after the will and so was the birth of the child. This would allow them to receive their intestate share. Even if the will had not provided for her and was done after the marriage she would have rights to his property as an elective share unless there had been a prenup she would have elective share rights as a spouse.

James Browns 6 adult children split the remaining 25%.

The estate reportedly has limited assets currently though and had held an auction which raised $850,000 in order to help pay debt of the trusts and estates.

There have been reports of breach of fiduciary duty by the trustees who reportedly have not given full accountings and are said to have mismanged the trust assets. They did not approve of the settlement and are appealing.

His wife and her attorney mentioned that the family and charity were happy to move forward after the trust litigation battles of the past few years and just wanted to work together to continue to enhance his image. The image of the godfather of soul will likely be the most significant estate asset. The estate of his friend Elvis Presley for example earned $52 million last year despite his death decades ago. By contrast even some of the biggest celebrities who are alive and actively earning such as Justin Timberlake and Madonna made ten or more million less according to the annual list of top earning deceased celebrities in Forbes.

This trust and estate settlement proposal had been worked out months ago and submitted to the probate court for approval although the probate judge in South Carolina overseeing the case finally reviewed and approved it. Unless it is impacted by the appeal of the trustees all the litigation concerning the trust and estate can finally be put to rest. In this case as with some other large celebrity cases there had been numerous lawsuits which needed to be resolved as well as determining what the will and trust said then all the parties agreeing to settle the disputes.

As James Brown liked to say and those who have finally been able to settle the trust and estate litigation disputes that had been in probate court would likely have said "It feels good".

Information from this post comes from Sheena Hastings Battle of Wills...why the recession is leaving a new legal of legal conflict which appeared in the United Kingdom's Yorkshire Post and from Florida Probate Attorney and Co chair of the Broward County Probate and Trust section David Luber who compares some information in this article re will contests in England with Florida Will contests.

One London Probate Litigation law firm found that there were 228 will disputes dealt with by the High Court in London in 2008 compared with 83 in 2006 and the figures would be substantially higher since most will contest and probate litigation cases are settled.

Even before the economic slump she pointed out that society was increasingly resorting to probate and estate litigation with disputes over wills but as the values of many estates drops even more challenges and contests are being fought.

When the economy was strong with real estate and the stock market skyrocketing there were more estates worth fighting over. Now people are more desperate to inherit because of their own situations so despite the values of the estates falling the number of disputes and will contests has risen.

The downturn in the economy is further magnified by the fact that people are living longer and the costs of medical care has significantly increased so there is less in the estate. Additionally family situations are becoming increasingly complex and more people seeking to provide something for charity as well.

A solicitor there which the US would refer to as an attorney says that wills can be challenged based on the testator not understanding what they were doing due to mental incapacity or "because those with reasonable expectations of being beneficiaries (including spouse, partner, civil partner, children or other dependents) have not received anything or not enough. It is not seen as equiptable to ignore people who've had those kinds of relationships with you in your will."

While this is an interesting comment and may be the law in England as a Florida Probate Attorney I know that lack of mental capacity is a frequent reason to challenge a will and justifies bringing a Florida will dispute but that other than homestead rights of a minor children to a parents residence which is in the sole name of a parent children have no rights to estate assets merely by being children, spouses only have a right to a life estate in the primary residence if it is in the spouses sole name and may have an elective share right to 30% of the gross estate (including probate and non probate items) if there is no prenuptial agreement but otherwise there is legal basis for a wills contest merely since someone felt they did not get enough. Additionally a civil partner or adult dependents who are not named in a will have no right to receive any property from the decedent. A frequent cause of action in Florida is undue influence where a person is coerced by another they have a relationship of trust and confidence who then receives a larger share and the document becomes the influence of the other person not the one who is giving away there property. While a further discussion of undue influence is beyond the scope of this post it is interesting that they mentioned challenging based on not feeling they had received enough but not for that reason.

An additional issue the article brings up is the danger of using specific devises and the importance of revising a will if there is a significant change in circumstance. A case the womans law firm handled involed where the decedent intended their child to receive the majority of the estate and then provide for a charity so $40,000 in English currency was provided to go to the charity and the residue to the child. However the mom needed medical care and her home and some assets needed to be sold as a result leaving just $40,000. This is a reason it can be safer to use percentages, revise the will while the client still has capacity or at least provide after a certain amount goes to the primary beneficiary then it would have gone to charity. In this type of case if the decedent had been asked if they would have wanted that to happen and whether they would like to do a new will it is almost certain she would have but after the passing it is obviously to late. Had it said for example 80% goes to son though and 20% goes to charity then even if the estate had shrunck significantly as it did the son would still get the $32,000 pounds or whatever she wanted him to have.

Interesting to hear the stats and information from the United Kingdom although as mentioned a wills contest and estate dispute is handled differently in some respects in Florida and while a non contest clause seeking to prevent someone from disputing or contesting a will in Florida probate court is not enforceable a legal cause of action is required such as lack of mental capacity or other reasons not merely reasonable expectations or a sense that because someone fell into one of the categories mentioned would be entitled to sue for a share of the estate on some type of equitable ground. Estates pass to whom the decedent - testator provided for if there was a valid will or who the state of Florida provides if there is no valid will and expectations do not give the right to sue.